Getting the Votes and Getting Elected: The Popular Vote vs. The Electoral College

by Geri Zabela Eddins

We vote for a new president every four years, on the first Tuesday after the first Monday in November, as established by Article II of the Constitution. Following the long, grueling months of advertising, primaries, conventions, and debates that make up modern presidential campaigns, Americans at last go to their polling places to make their voices heard.

The One Who Gets the Most Votes Wins . . . Right?

You might think that the candidate who receives the most votes becomes president. Although this is almost always the case, five times in our country’s history—in 1824, 1876, 1888, 2000, and 2016—presidential candidates have lost an election even though more Americans voted for them than their opponents. How can this be? The simple answer is that the Constitution specifies that the president is officially elected by the votes cast by a group of people known as the Electoral College, not by the popular vote—those votes directly cast by each voter. Although every elected official in the U.S.—from school committee members to U.S. senators—are elected based on the popular vote, the president and vice president are elected by the Electoral College.

Understanding the Electoral College

When we vote in November and mark our choices for president and vice president, we are actually voting for electors—people who represent our choices in the Electoral College. (The term Electoral College does not refer to an institution of higher learning, but to the group of representatives from each state who are pledged to vote for a particular candidate.) So, if our ballot reads “Jane Smith” and “John Doe,” each vote for Smith is really a vote for an elector who has pledged his or her support for Smith.

Although the news media announce the probable winner the evening or morning following the November general election, the election is not official until the Electoral College votes and Congress has counted those votes. The chosen electors meet in December (on the first Monday after the second Wednesday) in their respective state capitals to cast their votes. The Constitution does not require electors to vote based on their state’s popular vote; however, twenty-nine states do have their own laws that legally bind electors to cast their votes for their party’s candidate. Sometimes electors do choose to write in the name of someone else or to abstain. For example, in the 2016 election between Republican candidate Donald J. Trump and Democratic candidate Hillary Clinton, a record-breaking seven electors chose not to cast votes for their pledged candidates. Such a large number of electors deviating from their pledged votes is highly unusual. To date no elector has ever been prosecuted for voting against his or her pledged candidate, and the constitutionality of the state laws governing the votes of electors has not yet been tested.

The votes cast by the electors in each state are sent to the president of the Senate to be counted before a joint session of Congress on January 6. The candidate who has received a majority of the 538 possible electoral votes (which is at least 270) is declared president. The transfer of power to the new president occurs at noon on January 20 when he or she is sworn in by the Chief Justice of the Supreme Court.

In most election years, the workings of the Electoral College are a formality. Media outlets are able to “announce” the winner with near perfect accuracy based on the popular vote because the vast majority of electors do vote for their party’s nominee. So today we almost always know the winner before the Electoral College meets.

2012, 2016, and 2020 Electoral College Map
(Number of Electoral Votes per State and the District of Columbia)

Granting Electors

Article II of the Constitution grants each state the same number of electors to the Electoral College as it has Congressional representatives and senators. However, the Constitution does not stipulate rules that each state must follow in granting the electoral votes to presidential candidates. So, even though forty-eight states use a winner-take-all system (giving all its electoral votes to the candidate who receives the highest popular vote), the states of Maine and Nebraska do not. These two states grant their electoral votes based on the popular votes in each congressional district of their states. That means if a candidate receives the majority of votes in California, he or she will be awarded all fifty-five electoral votes. But if the same candidate does not win the majority in Nebraska, he or she can still gain one or two electoral votes if he or she wins one or more districts.

Winners and Losers

When a president wins the popular vote but still loses the presidency, people can become very upset. In fact, when this happened in 1876, the state of the union was so fragile that the U.S. was nearly plunged into a second civil war. This controversial election pitted Republican Rutherford B. Hayes against Democrat Samuel J. Tilden. Both candidates and parties were advocating for the same thing—government reform—so in order to differentiate their campaigns, both sides engaged in mudslinging and vicious attacks. Republicans accused Tilden of evading taxes and profiting by defending corrupt politicians. The Democrats countered by declaring Hayes had stolen the pay of soldiers who died in the Civil War. They also alleged that Hayes had even shot his own mother. The election was incredibly close, and newspapers initially reported that Tilden had won. At first it did seem that Tilden had won because he had secured 184 electoral votes and Hayes had won only 165. But, 185 electoral votes were needed to win the election, and the votes of four states became hotly contested. Congress appointed a commission of seven Democrats, seven Republicans, and one Independent to resolve the dispute. Unfortunately, the Independent candidate resigned and a Republican was appointed to replace him. This shifted the balance of the commission to eight Republicans and only seven Democrats. Not surprisingly, the commission voted along party lines and all electoral votes were awarded to Hayes. So, in the end, Tilden won the popular vote, but Hayes won the Electoral College and the election. Democrats condemned Hayes as “His Fraudulency” and “Rutherfraud B. Hayes,” then took action. They armed themselves and threatened to secede. Tilden, however, kept his cool. He recognized the potential disaster and insisted that his supporters accept the decision. In the meantime, Democrats and Republicans also met secretly to negotiate a compromise—the Democrats would accept Hayes as president in return for certain concessions to the South, including the final removal of federal troops. Both sides agreed, and Hayes was inaugurated with the nation at peace.

Such drama is not unique to our country’s earlier elections. The 2000 election was also a nail-biter, and the news media mistakenly declared the winner. At one point the Democrat Al Gore called his opponent Republican George W. Bush to concede. Later that evening, though, Gore learned that the votes in Florida were being deemed way too close to call, so he called Bush back to retract his concession. Bush was shocked, and so was the country as news reports surfaced with stories of voters who complained that their ballots were too confusing. Many voters were convinced they had voted incorrectly. The state of Florida was thrust into turmoil as it was forced to count and recount its votes into December after an automatic machine recount on November 14 revealed that Bush had won only 300 votes more than Gore in the almost six million total votes cast. Gore demanded a manual recount, but the recount produced an additional predicament. Many of the cardboard ballots had not been punched completely by voters, making it difficult for vote counters to determine the voters’ intentions. Legal battles ensued all the way to the Supreme Court. The Supreme Court ultimately ruled that the manual recounts violated the Equal Protection Clause of the Fourteenth Amendment because the vote counters used different standards to determine how they counted each vote. By using different standards the recount was not treating all voters equally. They further ruled that it would be impossible to complete an accurate recount before the date required by the Constitution, so the Court stopped the count and awarded the votes to Bush. In this election, Gore won the popular vote by more than 500,000 votes, but his opponent Bush won the Electoral College and the election. Although many people throughout the country were outraged, this controversial election did not prompt calls for an armed revolution and Bush served two terms as president.

What Were They Thinking?! The Founding Fathers Compromise

If you think the Electoral College system is confusing and unfair, you are not alone. Many Americans share your opinion. In fact, over 700 proposals have been introduced in Congress over the last 200 years intending to either reorganize or eliminate the Electoral College. Even Thomas Jefferson wrote that he considered the Electoral College to be “the most dangerous blot in our Constitution.” So, why do we elect our presidents this way? The simple answer is that the Electoral College was the best solution to selecting the president that the delegates at the Constitutional Convention could agree on. And this solution was a compromise.

Although Jefferson had written in the Declaration of Independence that “We hold these truths to be self-evident, that all men are created equal,” the fact is that some of the delegates at the Constitutional Convention were skeptical about the ability of each American to cast an informed vote. Regarding the ability of the common man to vote, Massachusetts delegate Elbridge Gerry commented, “The people are uninformed, and would be misled by a few designing men.” And Virginia delegate George Mason noted, “The extent of the country renders it impossible, that the people can have the requisite capacity to judge of the respective pretensions of the candidates.” It is true that in the eighteenth century many people were uneducated and illiterate. Even by 1870—almost 100 years since America had declared its independence—20 percent of Americans continued to be illiterate. Other obstacles also prevented people from making informed decisions, such as geography; citizens were widely scattered, and many lived in remote locations. The lack of modern technology meant that mass communication did not exist. With no way to communicate information about potential candidates to all the voters—no radio, no TV, no Internet—the framers gave the voting power to electors, whose job it was to learn about the candidates, debate their qualifications when they met at the state capitals, and vote for us. Although giving the vote to Congress was also considered, the delegates ultimately decided this would grant the legislative body way too much power. So, creating the Electoral College became the compromise between those who favored a popular vote and those who favored allowing Congress to determine the president. Furthermore, instituting the Electoral College addressed one additional concern—the need to provide equity between states with large and small populations. By granting each state a number of electors equal to its representatives in Congress (which differs by state) and Senators (which is two, the same for each state), they hoped that more populous states would not exercise too much power in electing the president. Therefore, even a very small state is provided a minimum number of three electors.

Political Parties Compel Changes

When the delegates at the Constitutional Convention decided to create an Electoral College to choose the president, their vision for how this group would work was somewhat idealistic. In their minds, electors would be educated and distinguished citizens of each state who would be free to consider each presidential candidate. They envisioned that the electors would carefully discuss the qualifications of each candidate and engage in vigorous debate before casting their votes and sending them to Congress. And in our country’s early elections the Electoral College did work this way because electors were chosen either by the state legislatures or by popular vote within each state. However, the development and rising power of political parties transformed this process from the Fathers’ idealistic vision. Over time, electors were no longer chosen for their distinction as citizens, but for their loyalty to a particular party. Today, electors are chosen at state party conventions or are appointed directly by party leaders. Each major party elects or appoints the same number of electors as the state has electoral votes. So, when the electors chosen in the November election meet in their respective state capitols in December, there is no vigorous debate about the presidential candidates’ qualifications—the electors simply vote for their party’s candidate.

One additional departure from the Fathers’ initial vision for presidential elections centers on how the votes are cast. Initially, each elector cast two votes but did not specify one as being for president and the other as being for vice president. The candidate with the most number of votes became president, and the candidate with the second highest number of votes became vice president. This system worked well for only our country’s first two elections when Washington was elected unanimously. But in the midst of Washington’s second term, political parties rose to power to influence the subsequent elections in unanticipated ways. The winners of the 1796 election—John Adams as president and Thomas Jefferson as his vice president—were members of opposing political parties. The following election hosted a rematch between the two, which provided the only election in American history in which a president ran against his vice president. In this election the Democratic Republican candidate Jefferson and running mate Aaron Burr each received the same number of votes. The tie sent the vote to the House of Representatives, which became deadlocked for days. Alexander Hamilton, who believed his fellow Federalist Adams was a dishonest man, exercised his own political muscle as a Federalist Party leader and influenced five other Federalists to withhold their votes so that Jefferson could win a majority. On the thirty-sixth ballot Jefferson was finally elected. To prevent similar predicaments from happening in the future, Congress ratified the Twelfth Amendment in 1804. This amendment requires separate votes for president and vice president and also stipulates that the president and vice president must come from different states.

Read More

To read more information about the Electoral College, refer to: Archives.gov.

To see which states legally require electors to cast their votes for a specific candidate and which states do not, check out: Archives.gov. Be sure to scroll down to “List of State Laws and Requirements Regarding the Electors.”

Discussion Questions for Young People at Home and in the Classroom

Think about the reasons the Founding Fathers created the Electoral College. Do you think they made the best decision possible at that time? If not, what method would you have chosen for selecting a president? Now that over 200 years have passed, do you think the U.S. should continue electing our president using the Electoral College? Why?

Should the U.S. elect its president based on the popular vote? Why?

Do you think that the system for granting electors to each state provides a good balance for states with different populations? If we eliminated the Electoral College, do you think states with smaller populations would have enough influence?

One reason the Founding Fathers created the Electoral College was to ensure that those who voted were making informed decisions. Do you think today’s voters are well informed? Discuss the many ways we get information about candidates. How can we find accurate information?

Do you know who the electors are in your state? How can you find out who they are?

Activity Suggestions for Young People at Home and in the Classroom

Ask young people: Do you think electors should be required to vote for the winner of each state’s popular vote? Why? How does it work in your state? Go to the Archives.gov website to see if your state requires its electors to vote for the candidate who won the popular vote. On this website, be sure to scroll down to “List of State Laws and Requirements Regarding the Electors.”

Have young people complete their own version of the electoral map to predict election results at: Archives.gov.

Reference Sources

Books

Adams, Simon. The Presidents of the United States. Princeton, NJ: Two-Can Publishing, 2001.

Goodman, Susan E. See How They Run: Campaign Dreams, Election Schemes, and the Race to the White House. New York: Bloomsbury U.S.A, 2008.

The League of Women Voters. Choosing the President. New York: Lyons, 1999.

Morris-Lipsman, Arlene. Presidential Races: The Battle for Power in the United States. Minneapolis: Twenty-First Century Books, 2008.

Saffell, David C. The Encyclopedia of U.S. Presidential Elections. New York: Franklin Watts, 2004.